Central Administrative Tribunal - Allahabad
Naval Kishore Rajak vs General Manager N C Rly on 22 June, 2021
CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021
Open Court
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH, ALLAHABAD
(This the 22nd Day of June, 2021)
Hon'ble Mrs. Justice Vijay Lakshmi, Member (Judicial)
Hon'ble Mr. Devendra Chaudhry, Member (Administrative)
Original Application No.330/335/2021
1. Naval Kishore Rajak S/o Late Kundan Lal, R/o 327/1,
Mashihaganj, Spiri Bazar, Jhansi.
2. Anil Bhatnagar S/o Shri Daya Sagar Bhatnagar, R/o
178/2D, Surya Puram Awas Vikas Jhansi.
................ Applicants
By Advocate: Shri A.K. Dave
Versus
1. Union of India through General Manager North Central
Railway, Headquarter office Subedarganj, Allahabad.
2. General Manager (P), North Central Railway, Headquarter
office, Prayagraj.
3. Additional General Manager, Headquarter office,
Subedarganj, Prayagraj.
4. Dy. Chief Personnel Officer/Gaz, Headquarter office,
Prayagraj.
5. Divisional Railway Manager (P), NCR, Jhansi.
............. Respondent
By Advocate: Shri L.M Singh
ORDER
Delivered by Hon'ble Mr. Devendra Chaudhry, Member (A) Page 1 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 Matter concerns consideration of application for permitting applicant to write the departmental examination of Chief Loco Inspector (CLI).
2. We have joined through Video conferencing. Ld counsel Shri AK Daveis representing the applicant and Shri L.M Singh is learned counsel for the respondents. Both have joined online through video conferencing.
3. There are two applicants and both are working as Chief Law Assistants and are eligible to be promoted as Law Officer on the basis of a departmental examination. Such an examination was notified on 04.11.2020 wherein the written test was to be conducted on 18.03.2021.It is argued by the applicants that both of them fell sick all of a sudden on the eve of the examination on 17.03.2021 and therefore could not write the examination on due date. Therefore, both applicants filed applications for holding a supplementary examination for them as per provisions of Para-6 of the notification for the examination dated 04.11.20 (hereinafter referred to as 'Examination Circular'). In this context, Applicant-1 filed an application dated 19.03.2021 and Applicant-2 on 20.03.2021. However,it is alleged that the prayers of both the applicants have been rejected vide order 05.04.2021 and08.04.2021. Presently, the results of the written examination held earlier have been declared and so it is the prayer of the applicants that holding of the supplementary examination as Page 2 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 provided for in the para-6 of the examination circular is required so that the applicants' opportunity to be promoted is upheld. It is accordingly prayed that the respondents may be directed to hold supplementary exam for the applicants. Hence the OA.
4. Per Contra the ld. counsel for respondent has argued that the para 6(b) provides for filing of an application forwarded by Medical Superintendent / Divisional Medical Officer (MS/DMO) for holding of a supplementary examination in case a candidate is for reasons of health unbale to write the exam on a notified date. That neither of the applicants fulfil this condition inasmuch that applicant-1 got himself treated at a private hospital and has simply presented his application with documents from the private hospital without the recommendation of the MS/DMO etc and the applicant-2 has also likewise filed an application with only a forwarding from his reporting officer of a treatment at a CHC (local government medical facility unit). Therefore, a supplementary examination cannot be held without compliance of the examination circular. Hence the applicants have no case and so the OA needs to be dismissed at the admission stage. That further precisely for this reason there is no ground to grant IR. Further that since the IR and final relief are almost same therefore the matter be also decided finally.
Page 3 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021
4. We have heard the learned counsels at length and perused the documents including the short counter filed by ld. counsel for respondent carefully.
5. Inorder, to decide on the matter of holding of a supplementary examination for the applicants, it would be necessary to examine the said Examination Circular dated 04.11.2020. The relevant abstracts are reproduced herein below:
" 6. SUPPLEMENTARY WRITTEN TEST:
If required, a supplementary written test will be conducted subject to the following conditions and extant rule in this regard:
(a) Only the employees who are detained on administrative account from appearing in the main written test will be allowed to appear in the supplementary written test after Personnel Officer in-charge gives categorical reason with regard to the employees failure to appear in the main examination;
(b) The employees who are under sick during examination or otherwise and are continuing so since the date well before the examination date will only be allowed to take supplementary written test after MS/DMO's Railway Certificate to this effect that they were not fit to appear in the said written test, countersigned by the controlling officer and duly forwarded by the Personnel Officer in-charge.If any employee is issued G-92 on his request due to sickness, it may please be ensured that in red ink it should be clearly mentioned n G-92 that the employees concermed has to appear in the Written Examination for the post of LO on specific date
(c) Any reason, over which employees have no control, will only be allowed to take Supplementary written test on submission of supporting documents, countersigned by the controlling officer and duly forwarded by the Personnel Officer in-charge with categorical reason in regard to employees' failure to appear in the main examination.
(d) Employees who are absent for main written test will not be allowed to appear in supplementary written test except the circumstances as mentioned at para (a), (b) & (c) above.Page 4 of 25
CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 As maybe seen from above, condition 6(b) and 6(d) are very clear. 6 (b) is very unambiguous in its three-part - firewall shall we say
- as a stringent requirement, namely:
i. a MS/DMO Certificate to the effect that the candidate concerned was not fit to appear in the said written test; ii. countersign of the same by the controlling officer; and iii. duly forwarding of this countersigned paper by the Personnel Officer-in-Charge But unfortunately, in sharp contrast, we do not have even the first of the above parts fulfilled by Applicant-1. He has simply given a copy of a private hospital with no certificates from MS/DMO and required countersigning whatsoever. The plea that the in-charge of the said private hospital is an ex-railway doctor is profoundly precocious inasmuch that the plea argues to us to waive off the condition of a MS/DMO Railway certificate just because the private hospital has a doctor who is an ex-railway doctor. Morever submitting copies of a railway reservation ticket and an admit card are superfluous and an attempt to obfuscate the real weakness which is non fulfilment of the actual laid down conditions in the para 6 of examination circular (EC). So, any protection sought on that account is frivolous and a design to cover up the real fault which is not complying with the conditions. The effort of trying to hide the real intent is plain on the face. Nothing stopped the applicant to seek the certificates as laid down in the guideline post the alleged sickness. No explanation has been also provided for the same. As regards Page 5 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 Applicant-2, there is a countersign by the controlling officer but that is not on the Certificate of the MS/DMO which is required and then, it is without the countersigning of the Personnel Officer-in-Charge.
6. The ld. counsel for applicant has tried to counter the negations asserted by the ld. counsel for respondent by arguing firstly that the order dated 05.04.2021 is not a reasoned order and so it needs to be quashed. An examination of the impugned order clearly reveals that it is only a communication letter of correspondence within the office of the North Central Railway from the DyCPO for General Manager. Furthermore, the application itself merely prays for a supplementary exam and so the communication in normal course of events is neither expected to make a detailed reasoned order on why a certain decision was taken unless specially asked for and no such plea has been also made either. Vide the application only permission to appear in the ensuing supplementary exam is sought. In this context what has to be understood also is that an order / any order to be labelled as an 'order' calling for interference in a judicial sense has to be in the first instance in the shape of an instruction directed towards a person. Such orders are typically issued by the Courts or quasi-judicial authority as also such orders as - an order such punishment order/suspension order/charge sheet or an appointment order/termination order etc. The argument interpreting it as being an unreasoned order is therefore a Page 6 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 distorted imagery not worthy of being given weightage. One cannot find the traits of an apple while actually looking at an orange. A letter/order/communication has to be read for what it is and not what it is not. To do so would deny its very nature of purpose. As regards the communication / order dated 08.04.2021, the same is a mere declaration of the result of the written test. It is as it should be and by no logic any result of a written test can be required to detail out the reasons as to why certain candidates (applicants in the instant matter) failed the written test. Therefore, to argue that this an unreasoned order and seek its quashing is quite illogical and without any valid ground. In any case the communication order dated 08.04.2021 involves several other candidates and they have not been made party to it and any order quashing the results contained in this communication would be held as being ex-parte against those who have not been heard at all. The citations quoted by the ld.
counsel for applicant do not therefore apply squarely per the facts of the instant case and so we are unable to consider them. We would cite here the law laid down by the Hon Apex Court in the matter of Union of India &Ors. vs EG Nambuduri dated 23.04.1991 wherein it is observed as under:
"....The question then arises whether in considering and deciding the representation against report, the authorities are duty bound to record reasons, or to communicate the same to the person concerned. Ordinarily, Courts and Tribunals, adjudicating rights of parties, are required to act judicially and to record reasons. Where an administrative authority is required to act judicially it is also under an obligation to record Page 7 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 reasons. But every administrative authority is not under any legal obligation to record reasons for its decision, although, it is always desirable to record reasons to avoid any suspicion. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered illegal for absence of reasons. If any challenge is made to the validity of an order on the ground of it being arbitrary or mala fide it is always open to the authority concerned to place reasons before the Court which may have persuaded it to pass the orders. Such reasons must already exist on records as it is not permissible to the authority to support the order by reasons not contained in the records. Reasons are not necessary to be communicated to the Government servant. If the statutory rules require communication of reasons, the same must be communicated but in the absence of any such provision absence of communication of reasons do not affect the validity of the order......... There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reason...... If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. Page 8 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of the representation. it is always open to an administrative authority to produce evidence alinude before the court to justify its action...."
In light of above the ld. counsel for respondent has placed copy of the note sheet (Annexure R-1 to the short counter) concerning the decision of rejection of the applicants with regards to the supplementary examination. Relevant abstracts are reproduced below:
"..PP-26 Sub: Selection to the post of Law officer (Gr. 'B') in legal department for the assessment period from 01.04.2019 to 31.03.2021.
Selection to the post of Law Officer (Gr. 'B') in Legal Department for the assessment period from 01.04.2019 to 31.03.2021 is under process, and notifications dated 04.11.2020 (SN-36 to 38/4) and 23.12.2020 (SN-52 to 52/4) were issued wherein, total 12 eligible candidates were called for appearing in the written test held on 18.03.2021. Further, two candidates, Shri Hari Om Upadhyay, CLA/HQ and Shri S.A Mehdi Abidi, CLA/CORE have been provisionally called for written test as per CAT order.
As per the attendance sheet of written test placed at SN-75, out of 14 candidates 04 candidates were absent. One candidate Shri Chandra Shekhar Kumar has been promoted as APO and posted as APO/PRYJ.
As per para 6..3.2 of Master Circular 68 (SN-80) it is stated at 'Law Assistants/Chief Law Assistants are eligible for promotion to the post of APO or ACM in addition to their normal avenue of promotion to the post of ALO/Estate Officer etc. Depending upon the option they exercise. The option can be exercised after an employee gets selected to any of the gazetted cadre. Such an option should be exercised within 30 days of the result of the Selection/LDCE by the employee in writing and option once exercised should be treated as final.
In context to above, it is to submit that, the above mentioned para is not applicable in this case, as LO (Gr. 'B') written test was held on 18.03.2021 and Shri Chandra Shekhar Kumar was promoted to the post of APO/PRYJ on 06.01.2021 (SN-82 and 82/1) and resumed the charge on 08.01.2021 i.e. before LO (Gr. 'B') the written test was held on 18.03.2021. He has not exercised option to the post of I.O.
The details of 03 remaining candidates are as under:- Page 9 of 25
CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 S NAME Designation/ Reason of Medical certificate placed Forwarde N Working place absentee at d by (S/Shri)
1. Ashok Kumar CLA/HQ Sick Private Medical certificate Nil (SN-81 to 81/1) 2 Anil Bhatnagar CLA/JHS Divn. Sick Private Medical certificate DPO/JHS (SN-79/1 to 81/2) (SN-79) 3 N.K. Rajakk CLA/JHS Divn. Sick Private Medical certificate (SN-79/3 to 79/4) In context to above, it is stated that all the above three candidates have requested for appearing in the supplementary test of Law Officer (Gr. 'B').
As per para 6 (b) of notification dated 04.11.2020 (SN-38/1), the employees who were under sick during examination or otherwise and are continuing so since the date well before examination date will only be allowed to take supplementary written test after MS/DMO's Railway Certificate to this effect that they were not fit to appear in the said written test, countersigned by the controlling officer and duly forwarded by the Personal Officer Incharge. If any employee is issued G-92 on his request due to sickness, it may please be ensured that in red ink it should be clearly mentioned in G-92 that the employees concerned has to appear in the Written Examination for the post of LO on specific date.
The above 03 candidates do not fulfil the criteria laid down in the notification as they have submitted private medical sick and thus are not eligible to be called in the supplementary written test....."
Thus it is clear from the above when examined in light of the Hon Apex Court citation abovethat the decision in respect of the applicants is not unreasoned in any which way.
7. The next argument is that the Para-538 provision of the Indian Railway Establishment Manual (IREM) would apply in the instant case of sickness and not the provision contained in para- 6 of the EC. Inorder to test the veracity of the applicant we may examine the said IREM para, relevant portions of whichare reproduced below:
Page 10 of 25
CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 IREM
538. Sick certificate: (1) When a railway employee, who is residing within the jurisdiction of a Railway doctor, is unable to attend duty by reason of sickness, he must produce, within 48 hours, a sick certificate from the competent Railway doctor in the prescribed form as given in annexure XI to this chapter.
(2) Should a Railway employee, residing within the jurisdiction of the Railway doctor, desire to be attended by a non-Railway doctor of his own choice, it is not incumbent on him to place himself under the treatment of the Railway doctor. It is however essential that if leave of absence is required on medical certificate, a request for such leave should be supported by a sick certificate from the Railway doctor.
(3) Sick certificate may be issued by the Railway doctor of the section in which the Railway employee resides for the time being.
(4) When a Railway employee residing outside the jurisdiction of a Railway doctor requires leave on medical certificate, he should submit, within 48 hours, a sick certificate from a registered medical practitioner. Such certificate should be, as nearly as possible, in the prescribed form as given in the annexure XI and should state the nature of the illness and the period for which the Railway employee is likely to be unable to perform his duties. The competent authority may, at its discretion accept the certificate or, in cases where it has reasons to doubt the bonafides, refer the case to the Authorised Medical Officer for advice or investigation. The medical certificates from the Registered private practitioners produced by the employee in support of their applications for leave may be rejected by the competent authority only after a Railway medical officer has conducted the necessary verifications and on the basis of the advice tendered by him after such verifications. However, where the Railway medial officer could not be deputed for such verifications, the certificate from the registered private medical practitioner may be accepted straightaway. Note :- (i) Ordinarily, the jurisdiction of a Railway doctor will be taken to cover Railway employees residing within a radius of 2.5 K.M of railway hospital or health unit to which the doctor is attached, and within a radius of one kilometer of a Railway station of the doctors line jurisdiction....." The ld. counsel for applicant has argued that the above provision does not require the three-gate filter as stated in Para-6 of the Page 11 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 EC. Therefore, there is no need to comply with the said para of the EC and so the rejection of the prayer for supplementary examination (SE)is illegal and unjustified. The ld. counsel for respondent has countered this by submitting that the provision in the IREM provisionis for a general sickness when on duty and not for the specific purpose of writing an examination and nowhere does it contain any provision relating to an examination or for convening of a supplementary examination. Therefore, it would be a travesty of justice if the specific provision in para-6 of the examination circular is overlooked and the general provisions of the medical manual read overriding it. More so the applicant has not challenged the para-6 of the examination circular by way of any prayer to strike it down if it is anachronistic to the IREM.
8. We are inclined to agree with the view of the ld. counsel for respondent because it is the standard modicum of law qua reading of provisions that the guideline/instruction/parameter etc concerning expressly the matter under consideration has to be given primal importance as is crafted for that specific purpose and intent. Thus, the Hon Apex Court in the matter of interpretation of rules ruled as below:
In Chief Justice of Andhra Pradesh v. L.V.A. Dixitulu (1979 (2) SCC 34), the Hon Supreme Court observed as under:
"The primary principle of interpretation is that a constitutional or statutory provision should be construed "according to the intent of they that made it".Page 12 of 25
CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well- recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light, on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.
In Kehar Singh v. State (Delhi Admn.) (AIR 1988 SC 1883), the Hon Apex Court held thus:
"....But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.
In District Mining Officer v. Tata Iron and Steel Co. (JT 2001 (6) SC 183), the Hon Apex Court stated as under:
"The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of thing, it is impossible to anticipate fully in the varied situations arising in future in which the application of the legislation in hand may be called for the words chosen to communicate such indefinite referents are bound to be in many cases, lacking in charity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention i.e., the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed".
In Reserve Bank of India etc. etc. v. Peerless General Finance and Investment Co. Ltd. and others etc. etc. (1987 (1) SCC 424) while dealing with the question of interpretation of a statute, the Apex Court observed as under: Page 13 of 25
CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statue is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, Clause by Clause, phrase by phrase and word by word. If a statute is looked at in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, Clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each Clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."
In Seaford Court Estates Ltd. v. Asher reported in (1949) 2 All ER 155 (CA), Lord Denning, advised a purposive approach to the interpretation of a word used in a statute and observed as under:-
"The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature...... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in this texture of it, they would have straightened it out? He must then do so as they would have done.A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
The Hon Apex Court in Grasim Industries Ltd. Vs. Collector of Customs, Bombay (2002) 4 SCC 297, as also in Abhiram Singh Vs. Commissioner (2017) 2 SCC 629 laid down that, while interpreting the provision of a statute, it is to be seen that the intention of legislature is not frustrated. As regards the argument of the ld. counsel for applicant that the IREM should prevail over Page 14 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 the special provision contained in para-6 of the EC in light of the observations of the Hon Apex Court in the matter of State of Uttranchal&Ors. vs Sunil Kumar&Ors. (2011) 8 Supreme Court Cases 670 (Uttranchal)which concerns a land acquisition matter and does not go into the issue of interpretation of rules, particularly service rules wherever given and what is to be done while reading and interpreting different rules brought in apposition to each other. In fact, it is only concerning interpretation of an order by DM qua a land compensation matter in opposition to the order ofthe state government and the Hon Apex Court held that the Hon High Court could not have relied on the recommendations of the DM by treating the same as an order of the state government.
9. In the present case there is no such situation. In fact what we have is a EC issued by a competent authority which itself is unchallenged as a whole by the applicant or a plea made to strike down para-6 of the provision in the EC. Mere assertion that para- 6 shall not apply and only IREM para-538 will apply is not adequate to strike down para-6 and treat it as ultra vires qua the IREM. Thereforewe are unable to also see the relevance of the citation of Uttranchal (supra) in the instant case.What is more apt in our view in the matter is the observation of the Hon Apex Court in the matter ofJustiniano August De Piedade Barreto vs Antonio Vicente DaFonesca AIR 1979 SC 984, that -
Page 15 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 " unless the special law is abrogated by express repeal or by making provisions which are wholly inconsistent with it, the special law cannot be held to have been abrogated by mere implication."
More so, the Doctrine of Purposive Interpretation as the name suggests means that the court while interpreting the statute or the constitution looks into the purpose for which the provision or the statute in question was enacted. Similarly with regards to the Doctrine of Harmonious Construction between set of regulations the rule is "whenever there is a case of conflict between two or more statutes or between two or more parts or provisions then they are to be interpreted upon harmonious construction such that one part does not defeat the other. The doctrine is based on a cardinal principle in law that every statute has been formulated with a specific purpose and intention and thereby should be read as a whole. The essence is to give effect to both the formulated with a specific purpose and intention and thereby should be read as a whole. The normal presumption is that what Parliament has given by one hand is not sought to be taken away from another. The essence is to give effect to both the provisions for the purpose for which they are meant.The rules and guidelines cited by the ld. respondent counsel have to be interpreted in the context and what they read in plain terms.We cannot have a situation in which the plea and relief for supplementary examination is sought vide provisions contained in Para-6 of notification of the examination circular and the conditions laid down as in para-6 Page 16 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 are not acceptable. That is to say that part of the notification which is convenient to the applicant is acceptable but that part which is not acceptable as per their conjured relief is ultra vires.
10. Thus, from above citations it is clear that the rule has to be interpreted in the context of the purpose for which it has been framed. The para-6 provision is meant to check any cases of misuse of medical reasons for not appearing for an examination on time and trying to debunk the fair process of an examination. What has to be understood in the above context of rulings and the manner in which law operates is that we cannot read more than what the law provides for and in the present case the law provides for the MS/DMO certificate which is countersigned by the Controlling Officer which is itself duly forwarded by the Personnel Officer-in-charge. Thus, there is a 3-gate filter or firewall. It is quite logical to have the same because otherwise any candidate could corrupt the whole process of examination bysimply filing an application of some sudden sickness on the eve of an examination and such a cause being accepted on face value with due examination for its genuine nature. Such a condition would open flood gates for aspiring candidates for taking an examination at their time of whim and fancy on the simple pretext of falling sick on the eve of examination for possible dubious reasons such as inadequate preparation for the examination, attending some personal errands of choice or plain not being in a frame of mind to write and examination. Such a Page 17 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 state would result in the examination authorities being forced to prepare question papers again and again just because the candidates have more pressing personal problems which need not be examined for their veracity and compelling nature without any proof whatsoever or any proof which a candidate may push forward as per his/her choice and fancy. Such a candidate utopia would result in multiple candidates choosing their own time to write an examination. This itself would bring in its wake arbitrariness and injustice to those candidates who give their examination as per the notified schedule because it is to be appreciated also that it is not humanly possible to prepare and continue to prepare each time question papers of equal levels of difficulty or measure of merit and such a state of affairs is truly undesirable for a fair and justified system of evaluating personnel for a common post all the time and every time.
11. It needs to be said in no less uncertain terms that Dura lex sed lex- The law is hard, but it is the law-Equity supplements law but cannot supplant it. Thus, it is well settled that law prevails over equity if there is a conflict. Equity can only supplement the law, and not supplant it.Accordingly, we are inclined to accept the plea of the respondent counsel and therefore we are of the considered view that the applicants deserve no interim relief.
Page 18 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021
12. At this juncture we are also of the view that the rejection of IR as per thread-bare discussion would result in the applicants not being able to write any supplementary exam and so there would be no consequent possibility of evaluation of the examination answer paper and any examination result thereafter. The interim relief rejection would be a dismissal of the final relief also. This is because the applicant has sought interim relief which is quite similar to the main relief. The relevant abstracts of same are reproduced below for ready reference and comparison:
Main relief:
"....In view of the facts mentioned in paragraph 4 and the grounds taken in paragraph 5, above the applicants pray for the following relief(s):
(i) to quash and set-aside the impugned order dated 05.04.2021 (Annexure No.1) passed by the respondents and the order dated 08.04.2021 (Annexure No.2) passed by respondent No. 5
(ii) to direct the respondents to hold the supplementary written test for the post of Law officer
(iii) to direct the respondents to interpolate the name of applicants at appropriate place in the list / panel with all consequential benefits, if they are found selected..."
Interim relief:
"...The applicants pray that it is expedient in the interest of justice during the pendency of the original application, this Hon'ble Tribunal may graciously be pleased to stay the operation and effect of the impugned order dated 05.04.2021 (Annexure No. A1) and order dated 08.04.2021 (Annexure No A2)) passed by the respondents and further direct the respondents to hold supplementary written test for the Page 19 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 applicants for the post of Law officer within stipulated time before preparation of final panel for the post in question or to pass such other and further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.."
As may be seen by an examination of the interim relief, it prays for almost the same relief as sought in the main relief part and so grant of IR as a benefit of doubt,if at all, would result in the wasteful consequence of convening of a supplementary exam with a lot of effort, time, cost and human resources with the whole of which coming to naught when it would be realized at the final order stage, that the applicants were actually not eligible to be given the benefit of the supplementary exam in the first place. In fact the pernicious practice of trying to seek interim relief similar to main relief needs to be dealt with a firm hand. The law has to be hard often to ensure delivery of justice which is why justice is so prized.
The respondent counsel has also asserted in his short counter that the IR is similar to main relief and during the course of arguments alluded to the wastefulness and mirage of the same. Therefore, taking all the facts and issues into account, it is our considered view that the final reliefof quashing and setting aside the impugned orders dated 05.04.2021 and 08.04.2021 being almost similar to the interim relief cannot be proceeded with any further and there would be no purpose in calling for any counter affidavit and then attempting to find any other ground on the basis of which the applicants' case for holding of supplementary Page 20 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 written test can be adjudicated upon with any purpose. It would be a frivolous exercise in diligence and a waste of time. The Hon Apex Court has held in a catena of judgements that wherever interim relief is similar to the main relief then there is no case for grant of interim relief. Thusthe Hon High court in the matter of Pradeep Kumar Arora And Anr. vs State Of U.P. And Ors. on 2 February, 2005, Equivalent citations: 2005 (2) ESC 809 held that -
"22...no interim relief at the initial stage can be granted.....as the Hon Apex court has held consistently and persistently held that the Court of law should not pass an interim order which amounts to a final relief [VideA.P. Christians Medical Educational Society v. Gout, of A.P. and Anr., AIR 1986 SC 1490; State of Jammu and Kashmir v. Mohd. Yakoob Khan and Ors., 1992 (4) SCC 167; U.P. Junior Doctors' Action Committee and Ors. v. Dr. B. Shital Nandwani and Ors., 1992 Suppl (1) SCC 680; Guru Nanak Dev University v. Parminder Kr. Bansal and Anr., AIR 1993 SC 2412; St. John's Teachers Training Institute (For Women), Maduraf and Ors. v. State of Tamil Nadit and Ors., 1993 (3) SCC 595; Dr. BharatbhushanSonajiKshirsagar v. Abdul KhalikMohd. Musa and Ors., 1995 Suppl (2) SCC 593; Bank of Maharashtra v. Race Shipping and Transport Co. Put. Ltd. and Anr., AIR 1995 SC 1368; Commissioner/ Secretary to Government Health and Medical Education Department, Civil Secretariat, Jammu v. Dr, Ashok Kumar Kohli, 1995 Suppl (4) SCC 214; Union of India v. Shree Ganesh Steel Rolling Mills Ltd. and Anr., 1996 (8) SCC 347; State of Madhya Pradesh and Ors. v. M.V. Vyavsaya and Co., AIR 1997 SC 993; and Central Board of Secondary Education v. P. Sunil Kumar, (1998) 5 SCC 377J.
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23. The logic behind this remains that the ill-conceived sympathy masquerades as interlocutory justice exposing the judicial discretion to the criticism of private benevolence and the Court should not be guided by misplaced sympathy, but should pass interim Orders making accurate assessment of even the prima facie legal position. The Court should not embarrass the authorities under the Statute by taking over the functions to be performed by them.
24. In Union of India v. Era Educational Trust and Anr., (2000) 5 SCC 57, the Hon'ble Supreme Court after considering its large number of Judgments held that while passing interim Order in exercise of writ Jurisdiction under Article 226 of the Constitution, principles laid down for granting Interim relief under Order XXXIX of Code of Civil Procedure, 1908 should be kept in mind. It can neither be issued as a matter of right nor it should be in the form which can be granted only as final relief.
25. In Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225, the Hon'ble Apex Court held that ex-parte Injunction could be granted only under exceptional circumstances. The factors which should weigh for grant of injunction are - (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal of ex-parte injunction would involve greater injustice than grant of it would involve; (c) even if ex-parte injunction should be granted, it should only be for limited period of time; and (d) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.
26. In Burn Standard Co. Ltd. and Ors. v. Dinabandhu Majumdar and Anr., AIR 1995 SC 1499, the Hon'ble Supreme Court deprecated the practice of grant of interim relief which amounts to final relief, observing that High Court should exercise its discretion, while granting interim relief, reasonably and judiciously and, if loss can be repairable or the loss can be satisfied by giving back wages etc., no interim Order should be granted. Hon'ble Apex Court further observed as under :
"It should be granted only in exceptional circumstances where the damage cannot be repaired, for the reason that if no relief for continuance in service is granted and ultimately his claim....is found to be acceptable, the damage can be repaired by granting him all those monetary benefits which he would have received and he continued in service. We are, therefore, of the opinion that in such cases it would be imprudent to grant interim relief."
27. Similar view has been reiterated in Council for Indian School Certificate Examination v. Isha Mittal and Anr., (200O) 7 SCC 521.
28. In State of U.P. and Ors. v. Modem Transport Company, Ludhiana and Anr., JT (2OO2) 1 SC 425, the Hon'ble Supreme Court deprecated the practice of granting interim relief wherein the party could be compensated at the time of disposal of the writ petition. The Hon'ble Apex Court observed as under :
"It is unfortunate that the High Court has given no reason whatsoever in support of its Order. It is expected that when interim Orders are passed which, in effect, results in the writ petition itself being allowed, the High Court must give reasons in support thereof."
29. In Union of India and Ors. v. Modiluft Ltd., AIR 2003 SC 2218, the Hon'ble Supreme Court while making the similar observations held that an interim Order passed in equity must be one which Is equitable to all the parties concerned and it must meet ingredients of Order XXXIX, Rule 1 of Code of Civil Procedure.
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30. Similar view has been reiterated in State of Haryana v. Suman Dutta, (2000) 10 SCC 311; and Regional Officer, CBSE v. Ku. Sheena Peethambaran and Ors., (2003) 7 SCC 719.
31. Thus, in view of the aforesaid decisions, no interim relief, which amounts to a final relief, should be granted at the initial stage....." What has to be understood is that whilethe Courts have powers to grant relief of interlocutory mandatory injunctions under exceptional circumstances also keeping in view the facts and circumstances of the cases to generally preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, it is necessary that the Court satisfies itself that the applicant has a strong case for consideration if interim relief is granted and what is the balance of convenience. Apropos, being essentially anequitable relief, the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. The guiding principle is that the final prayer cannot be granted at the interim stage. In the present case it is very apparent that the applicants have not complied the conditions set out in para-6 of Page 23 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 the examination circular. Enough discussion on the same has taken place in the body of this judgement.
13. We are therefore inclined to decide this OA finally at the admission stage itself after hearing the detailed arguments of the ld. councils for both the parties and the perusal of the filed documents which we have examined very thoroughly with a very high-powered analytic lens and deem them sufficient for deciding the issue placed before us by the parties. The IR is indeed quite similar to the final relief sought inasmuch that the IR seeks a stay of the same impugned orders whose quashing is pleaded as final relief and holding of the supplementary examination. As we are convinced that the applicants do not have any right whatsoever to be given the benefit of a supplementary examination on account of their failure to meet the conditions laid down in the relevant provisions as discussed heretofore, therefore there is no question of IR and once the same is not granted no purpose is served in flogging a dead horse by calling counter and arriving at the same conclusions.
14. In conclusion, we find that the IR has no merit for the reasons discussed and analysed with a tooth comb as per above. In consequence therefore, with the rejection of the plea for IR concerning staying the effect of the impugned orders and rejection of the plea for holding of a supplementary examination, the original application is also decided finally and dismissed for Page 24 of 25 CAT ALLAHABAD Naval Kishore Razak &Anr vs UoI&Ors 330/335/2021 the reasons discussed heretofore above in great detail. Therefore, the Interim Relief prayer insisted and the main reliefs prayed for in the OA are liable to be dismissed and are dismissed. IR and OA dismissed and disposed accordingly.
15. No costs.
Devendra Chaudhry Justice Vijay Lakshmi
Member-A Member-J
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